Injured Worker Seeking Wage Loss After Medical-Only Notice of Compensation Payable Has Only Three Years to Do So
An injured worker in Pennsylvania generally has three years after the date of the injury to file a Claim Petition to seek workers’ compensation benefits for the injury. On the other hand, once an injury is accepted by the issuance of a Notice of Compensation Payable (NCP), and then wage loss benefits are suspended, the injured worker generally has 500 weeks, or three years from the date of last payment, whichever is later, to file for a reinstatement to such benefits. Where, then, does the issuance of a “medical-only” NCP leave an injured worker? This issue was recently addressed by the Commonwealth Court of Pennsylvania.
A “medical-only” NCP is a fairly recent document created under the PA Workers’ Compensation Act. This document allows the workers’ comp insurance carrier to accept responsibility for an injury, and to acknowledge the payment of medical treatment for such injury, but to deny any wage loss (“Disability”) has taken place. As discussed below, it is one of the most misused and abused documents in the entire Act.
The Commonwealth Court of Pennsylvania recently decided the case of Sloane v. Workers’ Compensation Appeal Board (Children's Hospital of Philadelphia). Here, the injured worker was a nurse who suffered an injury to her right elbow, diagnosed as lateral epicondylitis, in 2004. This injury was accepted by NCP and wage loss benefits began. Eventually, she went back to work, on a light duty basis. In 2006, she suffered another work injury, this one to her right elbow and also to her right knee. This time a medical-only NCP was issued. She continued to work, still on light duty, until 2007, when she went out of work to have a total knee replacement performed on the right knee. She never was able to go back to work.
In 2011, she filed a Petition for Reinstatement. After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Petition, finding that the injured worker was disabled from the work injury as of November 17, 2007, as a result of both the 2004 and 2006 injuries (the WCJ also determined that the 2006 work injury caused the need for the total knee replacement, but that finding is not relevant to this discussion).
On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed. As to the 2006 injury, the WCAB found that the injured worker had only three years to file a Petition for Reinstatement, and therefore, this Petition was not filed timely. Unfortunately for the injured worker, the WCAB then found that the Petition for the 2004 injury, while timely, could not support an award of reinstatement. This is because the 2004 injury was solely for the right elbow and there was no medical evidence that the disability in 2007 was for anything other than the knee.
An appeal to the Commonwealth Court of Pennsylvania by the injured worker was not successful, as the decision of the WCAB was affirmed. The Court concluded that a medical-only NCP is not the same as when a WCJ grants a Claim Petition and then immediately suspends wage loss benefits (as had been the routine prior to the creation of the medical-only NCP). In that situation, the injured worker would have 500 weeks within which to file a Petition for Reinstatement. However, with a medical-only NCP, no wage loss or disability had ever been recognized, so only the three year period would be available to the injured worker. As to the 2004 injury, the Court decided that the parties stipulated on the record that this litigation involved solely the 2006 injury, so the 2004 injury was never actually before the WCJ (A Court can affirm a decision, even if on different grounds). Considering that earlier in the litigation, the attorney for the injured worker specifically stated he was seeking reinstatement for both the 2004 and 2006 injuries, this holding seems a bit questionable. Regardless, it would appear, if necessary, the Court would have simply affirmed the WCAB on the same grounds.
Above, we mentioned the frequent misuse or abuse of the medical-only NCP. A favored tactic of workers’ compensation insurance carriers is to issue a Notice of Temporary Compensation Payable (TNCP), to temporarily accept a claim. Then, within the 90 days provided to revoke such a document, the insurance carrier will revoke it and issue a medical-only NCP. This is often done when the injured worker returns to work within the 90 days. So, if this case is now the law, then there should be a penalty for using the medical-only NCP if there had been any wage loss as a result of the injury. While I doubt any WCJ in PA will grant such a Petition, we can assure you that we will be filing Petitions for Penalties now in these situations. Under the theory of “what is good for the goose is good for the gander” (Or, I suppose, “you can’t have it both ways”), either the medical-only NCP means there has been no wage loss at all or it does not.